JAYARAJ K K Vs. KALYANI

JUDGEMENT

(1.) Defendants 1 and 2 challenge the order passed by the court below allowing the application under Rule 1 of Order 33 of the Code of Civil Procedure, by which the first respondent/plaintiff was allowed to continue the suit as an indigent person. Total court fee payable was Rs. 9,625/-. The plaintiff paid one tenth of the court fee. Contending that she was not in a position to pay the balance court fee, she filed I.A. No. 6364 of 1999 under Rule 1 of Order 33 of the Code of Civil Procedure. The first petitioner/first defendant filed objection to the application. He contended that the plaintiff has sufficient means to pay the court fee. The plaintiff was examined as PW-1. She stated that she is a widow. She is a retired Health Assistant getting Rs. 900/- per month as pension. She stated that she does not have any job or income or asset other than those movables shown in the application. It was stated that the amount received as pension is hardly sufficient for the expenses. Relying on the evidence of PW-1, the court below held that the plaintiff is entitled to get exemption from paying the balance court fee.

(2.) Learned counsel for the petitioners submitted that the court below was not justified in allowing the application, the plaintiff having paid one tenth of the court fee and she having not proved any change of circumstance from the date of filing of the suit. In short, the contention is that at the time when the suit was filed, the plaintiff was confident that she was able to pay the court fee. That was why she did not file an application under Order 33 Rule 1 at that time and preferred to pay one tenth of the court fee which indicates that as on the date of filing of the suit she was not an indigent person. At the time when the balance court fee is to be paid, the plaintiff cannot contend that she is an indigent person, unless it is proved that the change of circumstances warrant a conclusion that she has now become an indigent person disabling her to pay the balance court fee.

(3.) Rule 1 of Order 33 of the Code of Civil Procedure provides that subject to the provisions contained in Order 33, any suit may be instituted by an indigent person. Explanation I to Rule 1 states that a person is an indigent person if he is not possessed of sufficient means to enable him to pay the court fee. Explanation II states that any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person. Rule 5 provides for rejection of the application on various grounds. Clause (b) therein empowers the court to reject the application where the applicant is not an indigent person, and clause (c) empowers the court to reject the application where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as an indigent person. There are other circumstances also as mentioned in Rule 5, which would result in rejection of the application. Rule 9 provides for withdrawal of permission to sue as an indigent person. The Rule provides that the Court may, on the application of the defendant, or of the Government Pleader, order that the permission granted to the plaintiff to sue as an indigent person be withdrawn, in three contingencies mentioned in clauses (a) to (c). Clauses (b) thereof is that "if it appears that his means are such that he ought not to continue to sue as an indigent person". If an indigent person succeeds in the suit, Rule 10 provides for recovery of the court fee from the party ordered by the decree to pay the same. Rule 11 provides for recovery of the court fee where the plaintiff fails in the suit or is dispaupered, or where the suit is withdrawn or where part of the claim is abandoned or where the suit is dismissed. In such circumstances, the plaintiff shall be liable to pay the court fee which would have been paid by him had he not been permitted to sue as an indigent person.